Conservative states rush to pass religious freedom bills

Posted: April 18th, 2014 | Columns, Featured, Legally LGBT | No Comments

Paul McGuire | Legally LGBT

It seems curious why groups would oppose protecting religious freedom. After all, the Establishment Clause of the U.S. Constitution protects the rights of individuals to be free from government-imposed religion.

Lately claims of religious freedom have been used to defend against claims of discrimination brought by same-sex couples. Few people would support forcing a Catholic priest to perform a same-sex wedding. But what about when a florist or a wedding photographer insists that their religious freedom is violated when they are fined for refusing to participate in a same-sex wedding.

In California, we are lucky in that we have fairly solid protections against discrimination based on sexual orientation, gender identity, and gender expression. If a florist or baker decided to refuse service to a same-sex couple in California, they would be violating the law. The same is true in New Mexico and Washington state, where two cases have gotten national attention. Religious conservatives in other states see this as an opportunity to pass initiatives to strengthen religious freedom because to them, the religious business owner should be allowed to act according to his or her conscience.

Over the past year we have seen numerous laws proposed in the name of protecting religious freedoms. Many of these laws have been labeled anti-gay because they appear to shield businesses from any consequences for refusing to serve a gay or lesbian customer, or firing a gay, lesbian, or transgender employee.

Paul McGuire

Paul McGuire

Business groups who recognize that these bills create bad press and open the door to abuse have opposed some of the more broadly written bills. In February, Arizona governor Jan Brewer vetoed a similar bill after it was said passage would lead to signs in shop windows saying “no gays allowed.” Governor Brewer was quoted as stating that there didn’t seem to be much of an existing assault on religious freedoms as supporters of the bill claimed. This is not surprising because the only examples given were those of florists and bakers fined for refusing to take part in same-sex weddings.

There doesn’t seem to be much of a middle ground on this issue. On one side people see protections against discrimination based on sexual orientation as an assault on religion. On the other, the LGBT community sees these religious freedom protection bills as poorly veiled attempts to legalize discrimination against the LGBT community.

It would be nice if we could have a discussion to determine what society means by “protecting religious freedom”. When the Religious Freedom Restoration Act was passed in 1993, it had broad support from both parties. It does not appear as if they really agreed on what sorts of protections they were supporting.

The rights of religious individuals need to have a clearly defined end. The New Mexico Supreme Court said it best:

“In the marketplace of commerce … [people must] leave space for other Americans who believe something different … [I]t is the price of citizenship.”

Thus, no matter what one person’s individual beliefs, they should not be used as a basis for discriminating against people who live in a way you disapprove of.

The U.S. Supreme Court recently declined to hear the case of the New Mexico wedding photographer who was fined for refusing to photograph a same-sex wedding. This leaves the opinion of the New Mexico Supreme Court against the wedding photographer the final word on this case.

I support religious freedom until it turns into a license to discriminate. At that point it becomes detestable, and some would even say bigotry. I hope as some of these religious freedom bills pass in conservative areas of the country they do not bring with them a wave of discrimination, because the LGBT community will not stand for it.

—Paul D. McGuire is an openly bisexual family law attorney in San Diego who assists families dealing with dissolution of marriage and domestic partnerships. He is a columnist for Gay San Diego and also writes a blog on family law and LGBT issues at


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